SPEECH Act May Not Be The Final Word

Recently I discussed the SPEECH Act passed in July which gave some federal protection from lawsuits designed to suppress any criticism of Islam (here). For further background, you might want to read the two posts addressing the double-whammy of litigation against critics of Islam: Lawfare and Libel Tourism.

The SPEECH in SPEECH Act stands for Securing the Protection of our Enduring and Established Constitutional Heritage. It's a grand historical note that America has a First Amendment protecting freedom of speech and freedom of the press. Even our friends in the West have nothing comparable to it, and in other parts of the world, free speech is a totally alien concept. Congress finally recognized that foreign lawsuits and immense money damage awards brought to the United States for enforcement were actually nothing more than an indirect attack on a basic American right guaranteed by the Constitution. The Act could have been stronger, and may yet be improved upon in future legislation, but it is already a major step toward protecting American authors from the chilling effect on freedom of speech occasioned by the threat of facing huge damage awards obtained overseas but enforced here.

The thing that suddenly struck me (and a lot of lawyers currently in practice) is that given the nature of the central statist Obama administration, there could be a problem with the legislation that wasn't originally contemplated. Think in terms of the Arizona immigration law. It does nothing that the federal law doesn't already provide for. It creates no unique new State enforcement power. Yet the Obama administration found it necessary to file a lawsuit to prevent Arizona from enforcing its own law on the basic grounds of federal preemption/federal supremacy. How dare a State use its inherent police power to assist the federal government in enforcing the law?

Now, let's take a look at the SPEECH Act. The action by the federal government is not unique, and it certainly isn't the first governmental action to stop the suppression of speech by the use of libel tourism. The first act to protect an author from the predations of an Islamic litigation thug resulted from the publication of a book written by American author Rachel Ehrenfeld. The Book is entitled Funding Evil and it discusses the ways that Islam raises money to support worldwide jihad. It also names names, and one of those names hired a lawyer. 23 copies of the book somehow made it to England where the libel laws are loose, the burden of proof shifts to the defendant to prove he or she didn't commit libel, and the suits produce shamefully large awards of money damages.

The damage award was then carried to the United States for enforcement. To its eternal credit, the State of New York refused to enforce the judgment and quickly enacted the original libel tourism act. Three other States have since passed similar legislation. Bills addressing the same subject have been introduced in another twenty States. What the federal legislation might do to each of these States is now a potential conflict that few would want and few had even considered. Still, given the propensities of the Obama administration, and the Holder Justice Department in particular, it may be time for the States to prepare for a Summons and Complaint from the feds.

For the States which have not already passed libel tourism statutes, the federal legislation provides at least some protection for authors and speakers in their jurisdiction. But for those which have passed their own statutes, a warning is in order. Each State has passed legislation which is stronger in its provisions and penalties than the federal statute. Some provide for sanctions against attorneys and/or their clients who bring such damage awards for enforcement. At least one provides for cross-complaints for abuse of process and awards of money damages to the original defendant.

So what happens if an Islamic libel tourist files for enforcement of a judgment in one of the states with legislation more punitive than the federal law? We have no way of knowing, but it's possible to hazard an intelligent guess. Let's assume the author has offended an oil billionaire from a Muslim nation with an Obama-friendly potentate like, say, Saudi Arabia? And what if word gets back to Obama and Holder from Riyadh that the king and the billionaire are not happy about the jury award of $1 million to the author on a cross-complaint ("counter-claim") in a State court?

It is entirely conceivable that Holder will quickly put his staff of political lawyers to work on filing a lawsuit to overturn the State judgment. That could produce one of two possible results--perhaps both. First, a federal judge could find that federal law regarding foreign lawsuits preempts the legal field, and that no State has the right to pass its own laws of any kind on the subject. Second, the judge could find that Congress has not preempted the legal field, but he could still find that the First Amendment is such a basic Constitutionally protected area of law that the federal interest is superior to the State interest and hold that only the provisions of the SPEECH Act would apply. Since there is no provision in the SPEECH Act for awards on counter-claims as it currently exists, the damages award could be stricken entirely or reduced solely to award the defendant the costs of defending the suit.

Much of my thinking here is what could happen, not what will happen. But then that's what I got paid to do for much of my adult life. My suspicions about federal intervention have increased by leaps and bounds since Holder became Attorney General. My suspicions about federal obsequiousness toward oil dictatorships in Muslim lands have increased by leaps and bounds since Obama became President. So if I'm right, you heard it here first. If I turn out to be wrong, kindly disregard this article (LOL). Just remember, the Holder Justice Department is unconcerned about mass illegal immigration, but quickly and rabidly attacked in court the people of a State which is concerned about illegal immigration and attempted to do something about the problem washing across its borders. Holder strongly believes that no State has the right to defend its own citizens.

Lest anyone think I only applaud Republicans, I should point out that the SPEECH Act was proposed by Rep. Steve Cohen, a Democrat from Tennessee. Too late for the SPEECH Act, he saw the possibility of noxious interference from the federal government and wrote successful legislation regarding domestic lawsuits which violate the basic American right of free speech. That is pretty much the death knell for Islamists who wish to file their original suits here in the States. He is now contemplating introducing a companion bill to the SPEECH Act which would state clearly that the SPEECH Act should not preempt any state law which otherwise observes the formalities of the Constitution. In the meantime, we're still waiting for England to act on its own outrageous libel laws, something they have been promising to do for nearly two years now.